Entries Tagged 'Military Medical Malpractice' ↓

What effect , if any, will the recent election have on the Federal Tort Claims Act? No one can say for certain; however, there is an outside chance the FTCA could be amended to allow active duty members to sue for medical malpractice. Let me explain. The only thing that prevents active duty members from suing the government for injuries sustained incident to military service is the Feres Doctrine which was enunciated by the Supreme Court in the Case of Feres v. United States. Because the FTCA is a statute created by Congress, it can be amended by Congress. If that were to occur, the Supreme Court would be bound by the amendment.

Twenty years ago Congressman Barney Frank of Massachusetts introduced a bill in Congress to amend the FTCA to allow active duty service members to sue for medical malpractice injuries occurring in “fixed military medical facilities.” Hearings were held and the House of Representatives passed the bill overwhelmingly. Unfortunately, the bill died in the Senate after intense lobbying against it by both the Justice Department and the Defense Department. Given the outcome of the recent elections, that result might change if the bill were to again come up for consideration.

When this bill was last considered, the Senate was controlled by the Republicans. The bill never got out of the Senate Armed Services Committee because Senator Strom Thurman, the Republican committee chairman, refused to bring it up for consideration. Even if it had been reported out of committee, it is unlikely it would have been passed by the Republican controlled Senate. It certainly would have been vetoed by President George H. W Bush. With a Democratic majority in both the House and Senate and a Democratic President, things might be different this time around. In addition, today there seems to be more empathy for soldiers injured as a result of medical malpractice. All these factors could result in the first change to the FTCA in over forty years.

If Congress were to allow soldiers to sue for medical malpractice, there certainly would be limitations applied to that right. First, soldiers would not be allowed to file claims for care received outside a “fixed medical facility” nor would claims be allowed for soldiers in a deployed status. There would also be a requirement that any military of VA disability benefits received as a result of a medical malpractice injury be offset against any FTCA recovery. These are all reasonable limitations that were included in the original legislation and would surely be included in any new bill. On balance, however, amending to the FTCA to allow soldiers to file such claims would be a fair extension of the law, and one which would be welcomed by all service members and their families.

The family of Marine Sgt. Carmelo Rodriguez says military doctors misdiagnosed his skin cancer. Now, as CBS News correspondent Byron Pitts reports, they want the U.S. government held accountable for his untimely death.

Last week the Senate conducted hearings into the deaths of American soldiers in Iraq due to the negligent installation of electrical wiring by employees of Halliburton KBR. (View Article at ArmyTimes.com)

Testimony by former KBR employees substantiated the gross conduct of that company in performing its responsibilities under contracts with the Army Corps of Engineers. These incidents raise the interesting legal question of whether Halliburton KBR can be held legally liable for the death and injury of active duty soldiers resulting from its negligence.

It is well established that active duty soldiers cannot sue the government for injuries or death sustained incident to their service. That prohibition, however, does not apply to independent contractors working for the government such at Halliburton KBR. Such contractors are bound by the same rules as all non-governmental entities and must exercise reasonable conduct in the performance of its duties to those who foreseeable could be injured by their negligence.

Bottom line—while the United States cannot be sued by an injured soldier, an independent contractor such as Halliburton KBR can. Such an action would have to be filed in Texas federal court where Halliburton KBR has its corporate headquarters. The biggest obstacle to bringing such an action is the need to do so in a timely manner before the statute of limitations runs.

An action against Halliburton KBR can be pursued even if the soldier or his family has already received government benefits arising out of his/her injury or death. Of particular note is that government benefits do not compensate a soldier or a soldier’s family for such injuries as pain, suffering, and loss of society. No such limitation exits regarding a claim against an independent contractor.

If you or a loved one has been seriously injured as a result of electrical hazards in Iraq, you are encouraged to contact our military medical malpractice law firm for a free consultation.

Over the years I have represented numerous patients whose cancer was not timely diagnosed in military or VA hospitals, and who subsequently suffered damages as a result. Such cases are very demanding because cancer, as we all know, can be a deadly disease if not timely diagnosed and treated. The legal challenge in such cases is to prove that government health care providers failed to diagnose the cancer and that such failure resulted in damages to the patient. In many cases the military/VA doctor may have been negligent but the negligence did not effect the ultimate outcome. For example, if a doctor ignores the lump in a woman’s breast and two months later another doctor performs a biopsy of that lump and determines it to contain cancer, there will be no damages, and therefore no case, if the cancer is Stage I. Why? Because the two month delay made no difference in the ultimate outcome–the cancer two months earlier was obvioulsy Stage I and the treatment required to treat the cancer had not changed. However, if 18 months had passed before the cancer was diagnosed, and if the cancer had advanced to Stage III with involvement of lymph nodes, then a viable malpractice case could exist. In this instance the patient would have sustained substantial injuries because her life expectancy would have statistically diminished and the treatment required to deal with her cancer would also have changed. For instance, she likely would now require the removal of her entire breast and not simply the cancerous lump. She would also require chemo and radiation therapy which otherwise might not have been necessary. She also would probably be prevented from working or performing household duties while she underwent these treatments. These damages are significant and worthy of pursuing in a tort claim.

If you or a member of your family is diagnosed with cancer and you believe your military/VA doctors were negligent, please contact our firm, the Military Medical Malpractice Legal Network. We can assess your treatment and determine whether you were the victim of substandard care and whether that negligent care resulted in damages for which you are entitled to compensation. It is important that you consult an attorney shortly after your diagnosis so as not to allow the statute of limitations to run out. Timely attorney consultation will also insure that all necessary records are secured before they are lost, misplaced, or altered.

Anyone who receives care at a military or VA hospital can’t avoid noticing that there are plenty of folks working in those facilities who are not government employees. Of course, that is easier to detect in a military hospital where active duty personnel usually wear military uniforms. However, even in VA hospitals where most everyone is a civilian, there are a large number of health care providers who are not government employees. Why is this important? Because if you are injured as a result of the negligence of an independent contractor, the United States is not responsible for any damages you may incur. In such a case you must sue the independent contractor and/or his employer to obtain compensation. This will usually complicate things significantly. Let me give you an example. Our firm recently represented the family of an active duty sailor whose wife received her care at a Navy primary care clinic in California. That clinic was operated by the Navy but staffed by civilian doctors and nurses provided by by a private company. Over the course of two years the patient was seen by numerous doctors and nurses for various primary care needs. No one, however, ever obtained a family history from the patient which would have notified them that the patient, who was 42, was at high risk for colon cancer because her father had died of the disease when he was 48. In fact, the patient on several occasions requested a colonoscopy because of her high risk, but her requests were always ignored. Her husband was eventually reassigned to Arizona where she presented to an Air Force hospital with abdominal problems. Tests demonstrated that the patient was suffering from Stage IV colon cancer. Despite treatment, the patient died about one year after being diagnosed.

Our firm filed a claim against the Navy under the Federal Tort Claims Act. Upon receipt of the medical records we determined that civilian doctors had treated this lady at the Navy clinic. We therefore filed a law suit against the doctors and the civilian company that employed them. When the six month FTCA administrative claims period had run, we joined the United States to our suit. This was all very tricky since California law provides a one year statute of limitation to bring a medical malpractice suit while the FTCA allows two years. Had we missed the California statute of limitations, the sailor and his family would have been barred from suing the civilian doctors.

As things turned out, the Navy blamed the civilians for not properly treating this patient and the civilians blamed the Navy. Both of them, of course, blamed the patient who was dead. After over a year of discovery, both the United States and the civilian company settled with the family.

This case demonstrates how important it is to pursue a claim in a timely manner and to secure the services of a firm which has the experience and resources to take on both the government and a large corporation simultaneously.

In creating the FTCA, Congress specifically limited its coverage to the United States and its territories. Therefore, claims which arise out of injuries occurring overseas, i.e., Germany, England, Korea, etc., are not covered by the FTCA. However, they are covered by a statute called the Military Claims Act.

The major difference between these statutes is that under the MCA the claimant has no right to sue the United States in court. It may be unfair, but it is the law.

The Doctrine of Sovereign Immunity is a vestige of the common law which the United States adopted when it was created. That doctrine states that a citizen cannot sue the government without the government’s permission. Prior to 1946, no citizen could sue the United States government for any injury caused by a government employee. In that year, however, Congress passed the FTCA which provided for the partial waiver of its sovereign immunity. It did not include claims arising overseas. To fill in this gap, Congress passed the Military Claims Act which has its own special rules – one of which is that no claim can be filed in a federal district court.

In 1950 the Supreme Court decided a case called Feres v. United States in which it ruled that active duty personnel injured “incident to service” cannot file claims against the United States under the Federal Tort Claims Act. Receiving treatment at government facilities has been deemed an activity “incident to service”.

Generally any person who has been injured as a result of medical negligence occurring in a United States government health care facility with the exception of active duty personnel can sue the U.S. government for medical malpractice. This includes military dependents, military retirees, and veterans.

Our military medical malpractice attorneys have handled cases in virtually every area of medicine including birth trauma, surgical errors, and “failure to diagnose” (e.g., cancer, meningitis, stroke, heart disease, epidural abscess, abdominal aortic aneurysm, etc). We pride ourselves on accepting challenging cases that other firms have turned away because of their complexity.

Please view the Military Medical Malpractice Legal Network website for more information about how to file a medical malpractice claim.

All medical malpractice claims against the United States must be filed under a statute called the Federal Tort Claims Act (FTCA). That law sets forth specific requirements that must be followed. It is therefore critical that the claim be carefully prepared by an experienced attorney because once filed it has significant legal consequences and can be changed only under very limited circumstances.

Six Month Waiting Period

Once the claim is filed, the United States has six months to investigate the claim. If at the end of six months the government agency has not made an acceptable settlement offer, the claimant is then allowed to file a complaint in federal court. Because suit is filed in federal court, not state court, it is essential that attorneys experienced in federal court be retained.

Proving the Case in Court

In order to successfully prosecute a medical malpractice claim, the party bringing the action (the plaintiff) must prove by a preponderance of evidence that the negligent act of a healthcare provider caused injury to the plaintiff. The entire burden of proof resides on the plaintiff; the government need not even present a witness. In order to prove its case, the plaintiff must present the testimony of qualified experts who support his position. Identifying experts and working with them is a major part of preparing your case for trial. Our firm retains only experts of impeccable character and the highest professional credentials. We do this to insure that when we get to trial, the United States will be unable to attack our case by attacking our experts.

The Discovery Process

Once suit is filed, the parties will then enter into an important period called “discovery.”

During discovery both sides have an opportunity to force the other side to produce documents and other relevant materials such as medical records, tax returns, social security records, etc. They also have the opportunity to interview relevant witnesses under oath in a process known as a deposition. Prior to your deposition, we will work closely with you to insure that you make the most effective presentation possible.

Finally, as part of the discovery process, an injured plaintiff may be required to undergo an independent medical examination to confirm the physical injuries alleged. The law allows the United States to identify a qualified medical expert and force the injured party to undergo a noninvasive examination. Should this occur, we will again prepare you for the examination.

Settlement Negotiations

Once discovery ends, there will be a several month delay before the actual trial. It is during this period that settlement negotiations are most likely to get underway. If settlement negotiations are unsuccessful, we will go to trial.

The Trial Process

Under the Federal Tort Claims Act, your case will be tried before a judge, not a jury. This is important since judges are less inclined to be swayed by emotion than are juries. To succeed before a judge, we must have the facts on our side and be able to prove those facts by a preponderance of the evidence. Remember, the burden of proof is on the plaintiff.

In a trial there is only one winner. That is why it is critical to have a rock solid case prior to going to court and the very best trial lawyers to present your case.